United States District Court, M.D. North Carolina
MEMORANDUM OPINION AND ORDER
WILLIAM L. OSTEEN, Jr., District Judge.
Plaintiff, Adam Campbell, Jr., protectively filed an application for a period of Disability and Disability Insurance Benefits on May 30, 2007, alleging a disability onset date of February 8, 2006. (Tr. 13, 142-48.) It was denied initially and upon reconsideration. (Id. at 79-82, 93-100.) After a hearing, the administrative law judge (ALJ) determined that Plaintiff was not disabled under the Social Security Act ("the Act"). (Id. at 13-23.) The ALJ applied the five-step test (20 C.F.R. § 404.1520(a)(4)) and found in step 2 that Plaintiff had the following severe impairments: status post-surgical decompression for left rotator cuff injury with residual chronic pain syndrome, diabetes, and bursitis. (Id. at 15.) At step 3, the ALJ found that Plaintiff did not have a listed impairment. (Id. at 15-16.) The ALJ next concluded that Plaintiff had the Residual Functional Capacity ("RFC") to perform light work in that he could lift and carry up to 20 pounds occasionally and 10 pounds frequently with his right upper extremity, stand and walk for about 6 hours in an 8-hour workday, and sit for about 6 hours in an 8-hour workday. (Id. at 16-22.) Plaintiff also retained the RFC to perform sedentary work. (Id.) Plaintiff required a sit/stand option, could not lift more than 5 pounds with his left upper extremity, was prohibited from repetitive overhead activities with his left upper extremities, had a limited capacity for handwriting, and could not perform jobs with a significant need for handwriting. (Id.) At step 4, the ALJ found that Plaintiff could not return to his past relevant work. (Id. at 22.) Last, the ALJ concluded that there were jobs that Plaintiff could perform and so he was not disabled. (Id. at 22-23.) The Appeals Council denied a request for review. (Id. at 1-4.)
Plaintiff contends that the ALJ failed to state what weight, if any, he gave the medical opinions of Dr. Kevin P. Speer and Dr. Leo Thomas Barber. (Pl.'s Mem. in Supp. of Mot. for J. Reversing or Modifying Decision of Comm'r ("Pl.'s Mem.") (Doc. 11) at 2-6.) Plaintiff also contends that the ALJ erred at step 5 because his hypothetical to the vocational expert ("VE") did not include a sit/stand option or mention the frequency of the sit/stand option. (Id. at 6-10.)
A. Any Error in Weighing the Opinions of Drs. Speer and Barber is Harmless
Plaintiff contends that the ALJ failed to state what weight, if any, he afforded the medical opinions of Drs. Speer and Barber. (Pl.'s Mem. (Doc. 11) at 2-6.) The "treating physician rule, " 20 C.F.R. § 404.1527(d)(2), generally provides more weight to the opinion of a treating source, because it may "provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) [which] may bring a unique perspective to the medical evidence." 20 C.F.R. § 404.1527(d)(2). But not all treating sources are weighed equally. An ALJ refusing to accord controlling weight to the medical opinion of a treating physician must consider various "factors" to determine how much weight to give it. 20 C.F.R. § 404.1527(d)(2)-(6). These factors include: (i) the frequency of examination and the length, nature and extent of the treatment relationship; (ii) the evidence in support of the treating physician's opinion; (iii) the consistency of the opinion with the record as a whole; (iv) whether the opinion is from a specialist; and (v) other factors that tend to support or contradict the opinion. Id . A treating source's opinion, like all medical opinions, must be both well-supported by medical signs and laboratory findings and consistent with the other substantial evidence in the case record. 20 C.F.R. § 404.1527(d)(2)-(4); Craig v. Chater , 76 F.3d 585, 590 (4th Cir. 1996); accord Mastro v. Apfel , 270 F.3d 171, 178 (4th Cir. 2001). Opinions by physicians regarding the ultimate issue of whether a plaintiff is disabled within the meaning of the Act never receive controlling weight because the decision on that issue remains for the Commissioner alone. 20 C.F.R. § 404.1527(e). Here, Plaintiff contends that the ALJ violated 20 C.F.R. § 404.1527(d)(2), which requires "good reasons in [the] notice of determination or decision for the weight we give [a] treating source's opinion." 20 C.F.R. § 404.1527(d)(2); see also Social Security Ruling 96-2p, Policy Interpretation Ruling Titles II and XVI: Giving Controlling Weight to Treating Source Medical Opinions, 1996 WL 374188 ("SSR 96-2p").
Dr. Kevin Speer (Plaintiff's Treating Orthopedic Surgeon)
The ALJ discussed Dr. Speer's medical opinion at length (Tr. 19) and then decided not to "give [it] controlling weight because it [was] not consistent with the medical records as a whole." (Tr. 21.) Plaintiff faults the ALJ for not explaining further what weight Dr. Speer's opinions received. It can only be assumed, Plaintiff continues, "that the ALJ gave no weight to those opinions and therefore has violated 20 C.F.R. §§ 404.1527(d)(2) [and] SSR 96-2p." (Pl.'s Mem. (Doc. 11) at 2.) However, as Defendant points out, Dr. Speer's opinions are almost entirely consistent with the RFC the ALJ ultimately did adopt. (Def.'s Mem. in Supp. of Comm'r's Mot. for J. on the Pleadings ("Def.'s Mem.") (Doc. 13) at 5-6.) The only differences in Dr. Speer's opinions and the ALJ's RFC are accounted for by Plaintiff's own testimony, which the ALJ recited and relied upon in his decision. (Tr. 21.) Thus, any error here is ultimately harmless, because the alleged error clearly had no bearing on the procedure used or the substance of the decision reached. See Morgan v. Barnhart , 142 Fed.Appx. 716, 722-23 (4th Cir. 2005) (holding that reversal not required upon error in assessing treating physician's opinion where error clearly has no bearing on the proceeding).
Specifically, Plaintiff injured his left shoulder on February 8, 2006. (Tr. 200.) Dr. Speer operated on it on September 25, 2006. (Id. at 300-01.) On December 14, 2006, Dr. Speer reported that Plaintiff could go back to work as a janitor on January 2, 2007. (Id. at 311.) Dr. Speer later gave Plaintiff a 15% disability rating and restricted Plaintiff to 10 pounds lifting and no repetitive overhead activities, which he later changed to 5 pounds lifting and no repetitive overhead activities. (Id. at 283, 322.) Plaintiff clarified Dr. Speer's restriction at his hearing, testifying that the lifting restriction was strictly for his left upper extremity. (Id. at 46.) Plaintiff also testified that he could pick up a gallon of water with his right hand, weighing 8 pounds, every 15 minutes during an 8-hour workday. (Id. at 57-58.) Dr. Speer's restrictions and Plaintiff's testimony are consistent with the ALJ's RFC determination for light work that includes lifting with the left upper extremity up to 5 pounds with no repetitive overhead activities and a limited capacity for handwriting. (Id. at 16-22.) The ALJ did not reject Dr. Speer's opinions; he credited them in his RFC, except perhaps insofar as Plaintiff's testimony limited certain restrictions to his left upper extremity.
Plaintiff does not address Dr. Speer's medical records, assert what additional limitations (if any) the ALJ should have considered, or explain why any error here is prejudicial. Plaintiff implies that any error in attributing a degree of weight to a treating physician is per se reversible error, citing Dean v. Astrue, Civil No. 3:08-CV-563-GCM-DCK, 2010 WL 5589358 (W.D. N.C. Dec. 22, 2010). (See Pl.'s Mem. (Doc. 11) at 4-5.) Dean did result in a remand upon the ALJ's failure to explain the weight given to doctors' opinions. Dean v. Astrue, 2010 WL 5589358. Yet, the court did not consider if this error was harmless. Id . at *5. Dean was also remanded on other issues absent here. Id . at *6. Finally, this court finds the analysis in Morgan v. Barnhart, supra , persuasive on these facts. As explained, any error here is harmless.
Dr. Leo Thomas Barber (Treating Family Physician)
Nor, for similar reasons, did the ALJ commit reversible error as to Dr. Barber. While the ALJ did not attribute a particular degree of weight to Dr. Barber's opinions, the ALJ acknowledged Dr. Barber a number of times in his decision and discussed his treatment of Plaintiff at some length. (Tr. 19-21.) The ALJ therefore clearly took into consideration the contents of Dr. Barber's treatment notes in concluding that Plaintiff could perform a limited range of light work. And, nowhere in his brief does Plaintiff address the content of Dr. Barber's opinions, assert what additional limitations (if any) the ALJ should have incorporated into his RFC, or make a case as to why any error here is prejudicial. Upon review, it is also apparent that Dr. Barber's medical records are consistent with the ALJ's RFC. (Tr. 372-420.)
It is true that the ALJ did not discuss a one-page letter Dr. Barber wrote on Plaintiff's behalf. (Id. at 488.) It states that Plaintiff's symptoms "restrict[ed] his ability to lift and hold objects and as a result he has been unable to hold a job since his injury" and that "[b]ecause of limited education and job skills, work for which [Plaintiff] is qualified generally requires significant physical exertion. It is unlikely he will ever improve sufficiently to sustain employment. In my judgment he is ...